KAPILDEO RAI Vs. PT GOPAL DUTT MISHRA

JUDGEMENT

(1.) The sole question, for determination on this application in revision, under Section 25 of the Provincial Small Cause Courts Act, by the plaintiff, is, whether, here, Article 62, or Article 120, of the Limitation Act, 1908, applies?

(2.) In order to decide the question of limitation it is necessary to know the material facts: The plaintiff took settlement of some land from the landlord on an annual rental of Rs. 78-12-0. The defendants, later on, purchased the entire interest of the landlord of the plaintiff. The defendants, therefore, filed a rent suit for recovery of rent of the land, which the plaintiff had taken settlement of, not against the plaintiff who was its tenant but against one Bishwanath Upadhya alias Sidhnath Upadhya, who had nothing to do with the rent claimed land. The suit was decreed and the decree was executed by the defendants against the land of the plaintiff, although he was not a party to the decree under execution. The plaintiff, in order to save his property from sale, deposited the entire decretal amount to the extent of Rs. 290-2-0 in Court in favour of the defendants decree-holder, and, thereafter, instituted a title suit for setting aside the aforesaid decree. The plaintiff's suit was decreed on 31-8-56 and the rent decree, in execution of which the plaintiffs land was put up to sale, was set aside and the said judgment was upheld on appeal on 18-4-58.

(3.) In the executing Court, where the money had been deposited by the plaintiff in favour of the defendants, the plaintiff, On 6th November, 1954, filed a petition to withhold the payment to the defendants till the disposal of the title suit brought by him. To this application of the plaintiff the defendants filed a rejoinder on 13th November, 1954. After hearing both the parties the plaintiff's application for withholding the payment, was, however, rejected by the execution Court on 30th November, 1954. On 3rd December, 1954, the payment order, moved by the defendants for payment of the sum deposited by the plaintiff in their favour, was passed and, on 3rd December, 1954, the defendants withdrew the amount.